Tuesday, October 31, 2006

I have rarely felt so outraged at the City Government which is supposed to serve the people. When we filed the Police Lawsuit asking the City to provide enough police to protect the public we also filed questions, which are known as interrogatories, that the City is required to answer in 45 days.

That 45 days came and went, I called the City's lawyer Mark Sweeney who said he'd get back to me. He had an underling, Dave Sterritt, call me back to request an additional month to answer the questions. We plaintiffs agreed to let them have that extra time, and asked them to memorialize this in an email. After waiting a few days, I called them back and they informed us they were just going to ignore the Rules of Civil Procedure and not answer the interrogatories.

How are citizens supposed to feel when the government repeatedly ignores its own rules? What if we decided we didn't want to send in our taxes when required? Or get inspections for our cars? Why do they get to pick and choose the rules to follow, but we have to follow them all or face the consequences.

Anyway, it turns out there is a remedy for this, which I'm sure they knew, but they just want to take advantage of the fact that we are not lawyers. Here it is:

Rule 33 FINAL REQUEST FOR ANSWERS

1)DefendantCity of Boston has not answered the Interrogatories served on the Defendant on August 25, 2006 by the Suffolk County Sheriff

2) On October 25, 2006 Plaintiff Kevin McCrea called counsel for the Defendant Mark Sweeney to request the answers to interrogatories.Counsel seemed genuinely surprised to discover they were due and asked to get back to Mr. McCrea the next day.

3)On October 26, 2006 counsel for the Defendant Dave Sterritt (sp?) called Mr. McCrea and requested an extra 30 days or so until December 1, 2006 to answer the interrogatories.Mr. McCrea granted this request with the proviso that he needed to check with his co-plaintiffs.He asked Attorney Sterritt to memorialize this agreement in an email.

4) After receiving no response from Defendant, Mr. McCrea called Attorney Sterritt on October 30, 2006.Mr. McCrea let Attorney Sterritt knowthat the plaintiffs would allow the Defendant until December 1st.

5) Attorney Sterritt then informed Mr. McCrea this is like a "chess match" and that he and the defendant would not be following the Rules of Civil Procedure, and that they would not be answering the interrogatories at all.Mr. McCrea pointed out that he would be violating the rules of Civil Procedure, and that maybe a complaint to the Board of Bar Overseers would be warranted.Attorney Sterritt said he was just “doing what his bosses told him to do.”

6)Rule 33 says as follows:

3) Answers; Final Request for Answers. Each interrogatory shall be answered separately and fully in writing under the penalties of perjury, unless it is objected to, in which event the reasons for objection shall be stated in lieu of the answer; each answer or objection shall be preceded by the interrogatory to which it responds. The answers are to be signed by the person making them, the objections by the person or attorney making them. The party upon whom the interrogatories have been served shall serve answers and objections, if any, within 45 days after the service of the interrogatories. The court may, on motion with or without notice, specify a shorter or longer time. Unless otherwise specified, further answers to interrogatories shall be served within 30 days of the entry of the order to answer further. The interrogating party may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. Alternatively, for failure to serve timely answers or objections to interrogatories (or further answers, as the case may be), the interrogating party may serve a final request for answers, specifying the failure. The final request for answers shall state that the interrogating party may apply for final judgment for relief or dismissal pursuant to paragraph 4 in the event that answers or objections are not timely received. The party upon whom the interrogatories have been served shall serve the answers or objections either within 30 days from the date of service of the final request or prior to the filing of an application for a final judgment for relief or dismissal, whichever is later.

(4) Application for Final Judgment; Affidavit. In the event that answers or objections have not been received and after the expiration of 40 days from the date of service of the final request for answers, or such further time as the parties may agree upon in writing or the court may allow, the interrogating party may file a written application for entry of final judgment for relief or dismissal. The period of time set forth in the previous sentence shall be deemed to include the three day period allowed pursuant to Rule 6(d). The application must be accompanied by a copy of the final request for answers and an affidavit containing the following information:

a. the date and manner in which interrogatories were served on the party against whom relief is sought;

b. the fact that the 45-day time period for service of answers or objections has expired, and no answers have been received;

c. the date and manner in which the final request for answers was served;

d. the fact that the 40-day time period for answers or objections after a final request for answers has expired, and that no answers or objections have been received; and

e. that the party now applies for final judgment for relief or dismissal.

7)Plaintiff formally requests their interrogatories to be answered in accordance with rule 33 in 30 days.If not, they will request final judgment in the case.

8)Since Defendant used deceit in agreeing to answer the interrogatories, and then reneging on that promise without informing the Plaintiff, Plaintiff considers that the 30 day waiting period for the Interrogatories to be answered should be started on October 27, the day after Defendants agreed to answer the Interrogatories.If Defendants had been honest with the Plaintiffs on October 26 and informed Plaintiffs they had no intention of answering the interrogatories, Plaintiffs would have filed this request on October 27.Therefore, Defendants have until November 27, 2006 to answer the interrogatories.

Saturday, October 28, 2006

One of the few things missing from the Hub of the Universe here is a good call and response from the stage of a trombone playing band, yelling out "Tuba, Tuba, Tuba, Tuba!!!", with the audience responding in kind.

That however is one of the great things you will find in New Orleans. I recently had the good fortune of attending a CD recording concert at Tipitina's, legendary home of professor Longhair, just down on Tchoupitoulas Street.

BONERAMA is the name of the band, made up of 4 trombone players, a bass tuba, guitarist, and alternating drummers. OF course their fans wear the obligatory "Got Bone" t-shirts which never cease to upperly crease my smile.

They do covers, originals, solos, improv's, but the highlight for me was the extended solo of the Bass Tuba covering Helter Skelter by the Beatles. You don't see too many Tuba players in Boston jumping up and down mid-solo with excitement. That's the kind of energy you get for live performance in the crescent city. Won't see that at Symphony Hall.

Wednesday, October 25, 2006

Marie St. Fleur was in Dorchester this week speaking to an older crowd where she was questioned about the violence in the city. She said that the City has received money from the State, but that the city isn't using the money for police staffing.

I wonder if this is just pass the buck politics or if there is something really going on here.

Monday, October 23, 2006

We got a new police chief today, and I like what I hear about him. Community policing and being proactive about crime seem to be proven techniques.

Our new D-4 police captain came to our community meeting last week and is an impressive gentleman. I have heard great compliments from the Alston-Brighton community. He also believes in being responsive to the community, and was honest enough to let us know he is still learning about our district, although he was a patrolman here in the past. He runs marathons and has 3 children in the BPS. Best of luck to him!

I did ask him if getting new officers would make him reorganize the department, and he had a quizzical look on his face. He responded that no, it didnt make him reorganize the department, but that rookie officers initially spend time with more experienced officers. He also said that he prefers younger officers to older officers because they have more energy and go get them type of attitude.

Saturday, October 21, 2006

My wife and I enjoyed our first bottle of McCrea Wine last night a 2003 syrah, a tiny celebrationof a great week and a year of marriage without a pre-nuptial agreement!

If you haven't seen it yet, you need to watch the video of the Wednesday City Council meeting. The council nearly "imploded" as the Weekly Dig describes over a congratulatroy resolution with a picture of Team Unity on it. Steve Murphy was absolutely correct in his point that politcal pictures have no room on public resolutions, but the discussion degraded from there.

See it here: http://www.cityofboston.gov/citycouncil/cc_video_library.asp?id=243 The good stuff happens about an hour and twenty minutes in. Maureen Feeney is especially vibrant, asking if she should wear a shirt that says "Team Disunity", and m0ck compliments them for posting their meetings because "the rest of us are in enough hot water." She almost gives a compelling arguement for all discussions being outside of the public view, sort of the way George Bush, Dick Cheney and Karl Rove like it.

Donovan Slack's name is bandied about the council and later she quotes Michael Flaherty as saying he'd like to be part of Team Unity. So, I went to Chuck Turner and asked "can a white man be part of Team Unity?" Chuck responded in the affirmative and said that anyone who subscribes to their progressive agenda is eligible. "we'd be crazy not to include other people. If we could get a majority of 7 we could really get some things done." I wonder if Team Unity could publish or let it be known exactly what the guidelines are that need to be followed. I wonder if Gibran Rivera or Sonia Chang-Diaz, or maybe more interestingly if Samiha Diaz could join?

Interestingly, Chuck told me that he is not supporting Dianne Wilkerson for State Senate. He has had one too many times of Dianne selling herself and her constituents out. Most recently by supporting Northeastern University putting 1200 more beds in Roxbury. To say that Dianne has sold out to the establishment (too cheaply it appears from her myriad money woes) is pretty noteworthy from my district councilor, who proudly sports his Grace Ross for governor button.

Hey, it just occurred to me that political campaign stuff is not allowed in government buildings. I guess that Chuck must have forgot about that. So many rules, hard to choose which ones to follow.

A quick rundown of the local political scene. Steven Murphy has been actively campaigning for Deval Patrick and I'm sure is craving a Patrick win and a chance for a position, probably in Public Safety, in a new democratic regime. That would put John Connelly on the council. John has been out and about, recently seen at a community event in East Boston. That would put Matt O'Malley on the bubble. Matt has been working as Sheriff Cabral's liason to the State House. Patricia White has, of course, retired to raise her family. Ed Flynn has been teaching public school in Boston, computer courses, and has been active in South Boston. He is the leader of a community crime prevention group that has been asking for more police and more funding to combat the terrible drug problems in Southie.

(aside: we saw the Departed last night and were not impressed with it, quite disappointing)

I was at a fundraiser the other night where Byron Rushing gave a wonderful talk about the history of Roxbury. In a big slice of humble pie, I was sitting next to Shiela Dylan of DND and some other City Hall development types. Shiela was very nice and enjoyable, the others ignored my wife and I. No one had a clue who I was, as they discussed BRA and other city projects. It was Nuestra's 25th anniversary, and a great event overall for a group that has done a lot of great work building housing and communites.

A building inspector friend of mine called me up yesterday to talk about some things. He is really getting frustrated. As he said "if you don't know anybody they can make you wait 6 months to get anything done, if you have the right connections you get your permit in 2 days." He just keeps his head down and his mouth shut because he knows it is futile to try and fight this entrenched system. He then described to me something I hadn't about since the 80's here: building inspectors shaking down contractors for money. There is a relatively new inspector that was coming into his district and giving contractors a hard time. One of the contractors asked my friend if he could talk to him and he described what was going on. This is very disturbing news, and I'm not sure what to do or what can be done about it.

Finally, one of the City Councilors told me that he is sure that Menino is running again next time around. Great News!!!

Thursday, October 19, 2006

I am shocked, it still hasn't sunk in. Occasionally one goes to court and justice is served. Today, October 19, 2006 justice was served: On December 8, the Boston City Council will stand trial for violating the Open Meeting Law in their machinations to approve pay raises for the Mayor, themselves and other City personnel.

The judge in Superior Court today recognized the importance of the Open Meeting Law, saying that it was an essential element in a democracy and that the citizens are entitled to a speedy trial. Despite the protestations of the Counsel, to the Counsel, to the Council the judge ruled that there was no reason or room for them to be allowed to file a motion for summary judgement.

This is hopefully a huge victory for the Citizens of the Commonwealth. It upholds our position that because the rules in the Open Meeting Law are so different from regular law in that the Defendants must prove their innocence (not innocent until proven guilty as is normally the case) and because of the nature of the violation the plaintiffs do not have access to the information they need to prosecute a case, that defendants are not entitled to a motion for summary judgement. In short, the court has ruled that if there is even a valid suspicion that a government body violated the Open Meeting Law they must stand trial to prove their innocence.

This puts real teeth in the Open Meeting Law and will hopefully pursuade government bodies in the Commonwealth to open up their doors and let the public and the press in to see the "sausage making" that is lawmaking.

Although I am not a lawyer, I believe that the council's only options at this point are to plead guilty or to stand trial. We have also included Mayor Menino on the list of our witnesses, as well as Larry Dicara the head of the compensation committee, the City Clerk and some other material witnesses. Counsel for the Council has indicated they will fight vigorously to keep the Mayor from having to testify. Everyone else is fair game.

A huge tip of the cap to Kathlene Devine & Shirley Kressel for their yeoman's work on this case.

Wednesday, October 18, 2006

I was sitting in the zoning board of appeals hearings on the 8th floor of City Hall yesterday, with the usual cast of characters, and sure enough Larry Dicara was representing a client before the board and of course it was approved.

Why wouldn't it? Larry is the head of the compensation committee which recently approved raises for the members of the zoning board of appeal. I was wondering if Larry had ever been rejected by the ZBA?? It sure seems like the Harlem Globetrotters vs. the Washington Generals whenever he (and others on the inside) take the stage.

Is it just me, or does this seem a bit shady? Wouldn't you think the whole board should just recuse themselves? Members of the board often recuse themselves when they have any sort of interest in a project.

And we wonder why, as counselor Flaherty mentioned in his last mass email, businesses are leaving Boston. As the recent Nobel laurate spoke about on NPR the other day: the rule of law and open government are essential to economic prosperity.

I just got back from Italy where I attended my brother in law's wedding. Wonderful adventure through the lakes region of northern Italy and southern Switzerland. One of the many great reasons to travel is to see how other people live and work, and tackle the problems of daily living.

A quite enjoyable part of Europe is the street life in the towns and cities. People walk, talk, enjoy company into late in the evening in a relaxed casual way. We have areas like that here in Boston, the most european of american cities, such as the North and South Ends, Back Bay, Kenmore. I still believe we should amend our Puritan laws to allow some venues to remain open later, at least on weekends.

What always strikes Clara and I when we return to Boston is how dirty our streets are. As soon as we got off the T from the airport, there it is on Mass Ave and Columbus, papers scattered around, food store trash, etc. It is one of Clara's biggest disappointments in this city and we both agree that it comes from a lack of respect and care for the City, and a lack of Pride. I go deeper into the populace's psyche than she, with my theory that it is hard to respect a city that does not respect its citizens but whatever the reason it is clear that Boston could and should be cleaner.

We visited the Ducati Factory outside Bologna last Thursday which was interesting. It was neat to see the names of some contemporaries of mine from my racing career in the Northeast on the walls of the museum extolling their victories. Their motto is "we may not be the best, but there are none better." They have about 1000 employees making the beautiful desmo driven machines, of which I have never owned.

The wedding was wonderful, full of the wonderful things you hope for with a foreign wedding....beautiful Cathedrals, exquisite meals, 10 course dinner, dancing, discussions about business opportunities throughout the world, a hidden away wine cellar, with subterranean arched brick vaulted cielings where the gentlemen from the wedding party, the house chefs and local winemaker retreated to mid ceremony to sample 1000 euro bottles of wine and exsquisite champagne. It was great to relax, be a minor guest and fly on the wall and drink in the atmosphere.

I may have discovered why Italy has such a low birthrate (1.37 children per woman). The mattreses are abomitable!!! We stayed in a few different 3 star hotels at around 100 euros a night and they all had terrible mattresses, often just two twin beds pushed together with a queen sized sheet. Who can get excited about bedtime in that environment! More Vino, signori!!!

We also felt real coldness at times from the public sector. It is clear that the world is not happy with or excited about Americans these days, and that is in Italy which is allegedly one of our stronger allies according to our president. The vast majority of the wedding party was from Columbia, but they almost all speak english and would converse in English with service providers. At the rehearsal dinner of about 40, I noted that Clara's mother and I were the only ones born in the United States. It was very odd to see Italian's treating Columbian's poorly because of the assumed American ties.

Doesn't seem like I missed much while I was gone, more shootings, mudslinging in the governors race, and national republican implosion. There was a great article in the Economist about Intellectual capital and the status of the different EU countries with Denmark and Sweden getting high marks, Italy and Germany low. It reinforced the importance of education, spending time with children by families, and putting people into proper jobs.

Finally, I've been reading Doris Kearns Goodwin's book about Abraham Lincoln courtesy of the Boston Public Library. It is a great read, and wonderful look into the mid 19th century. My favorite quote so far is from the Pennsylvania political boss who intoned "an honest politician is one who, when he is bought, stays bought!"

Sunday, October 08, 2006

Recently, my coplaintiff Kathleen Devine and I were in court on the second Open Meeting Lawsuit and we discovered a new lawyer handling the case for the City, her name is Eve Pieomonte Stacy. She formerly worked for the City's Law Department but has since moved on to greener pastures with Roach and Carpenter a boutique firm whose namesake is head of the Board of Bar Overseers. She will be handling the suit about the pay raises for the City. I guess it is a sort of backhanded compliment that a lawyer, Michael Flaherty, who has a bunch of lawyers, the City Law Department, decides that those aren't enough so they use taxpayer money to hire outside lawyers to defend themselves. It must be nice to have our money at their disposal to use. I did a FOIA search and found that they were hired as part of a no bid $100,000 contract to defend the city on a number of items at $140 dollars an hour.

The City also announced in court that they would be appealing the decision in the first Open Meeting Suit. This allows the politicians to continue their charade about not being guilty (yet!!!) and again using precious monetary City resources to defend them. Remember, we have offered many times to sit down with them and work out a solution, but compromise seems to be beneath them, but then again they are certain they have not done anything wrong, so as any "innocent" defendant, like OJ, would do they are getting the best defense our tax dollars can buy them.

I do want to commend Michael Flaherty however on a recent issue. One of my blog readers informed me that there seemed to be a "never ending" meeting posted on the City's website of the Rules Committee. It started in February and ended December 31st, Monday through Friday in the Curley Room. What this did was allow a vehicle for the counselors todo an end around the Open Meeting Law by popping into the Curley Room and discuss whatever they wanted to discuss and be able to claim that the meeting was Posted! You would have to camp out in the Curley room to happen to catch them.

Shirley Kressel spoke to and wrote emails to the City Clerk asking this to be taken down or clarified. For about two weeks we got no response. Before filing another Open Meeting Lawsuit (which is really wearing us down) I suggested calling Michael Flaherty first and trying to work it out. Over the course of another two weeks we had a few conversations, he did some checking and eventually he had the posting taken down.

Although Michael will spin this as him taking the lead in crafting new rules due to the courts ruling, don't believe it. The councilors have been doing everything they can to circumvent the Open Meeting Law. As Mr. Flaherty said to me, "this is the way things have been done for years." In that I agree with him, this certainly predated him. However, as he explained to me his new rules allow a bill to goto a committee chairperson who is then allowed to work on, edit, add, subtract all he/she wants then submit it back to the full council without ever having an open discussion on it, and have a vote on it. The public would never know, and would have no chance to be heard. How Mr. Flaherty can claim this is open, transparent government is beyond me. It may meet the letter of the law, but certainly not the spirit. Everyone who votes him back in as council president is complicit in this version of government.

Speaking of less than open bodies, my Ward 9 committee has refused to have a meeting during this election cycle. As a committee member I have asked and emailed the members to hold a meeting so we can interview, vote on and support candidates. Why would we want to do that, I mean we are only a democratic ward committee and this is the middle of election season????The reason is probably because our Ward is run by politicos who are loyal to Dianne Wilkerson and do not want any hard questions or democracy to get in the way of their loyal daughter being reinstated. It certainly doesn't get me fired up about the greatness of the Democratic Party over, say, the Republicans. So much for grass roots, getting people involved politically and asking the questions that makes democracy excel.

Meanwhile on the home front, we've had two more car break-ins, and a car left over from drug deal left at the end of our alley blocking the driveway. Why would anyone want to move to the suburbs?

As expected, the City of Boston filed a motion to dismiss our suit asking the court to make the City enforce its ordinance that the police department have 2500 officers. The reasons they gave in their argument are as follows: plaintiffs have no standing, the ordinance isn't valid, and that adding officers to the police force would constitute a reorganization of the police department and only the mayor can do that.

Of course we disagree. We think it reasonable that 12 citizens of Boston have standing in the City of Boston. We think the ordinance is valid since you can see it on the city's website of ordinances and the city clerk said in the Globe that it is valid. Finally we certainly don't buy the argument that giving the chief of police more money to hire officers reorganizes his department. By that logic, giving him one more police officer reorganizes his department and that happens all the time without the Mayor getting involved.

Our response is as follows in legalese:

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss.SUPERIOR COURT

Civil Action No. 06-3549-A

___________________________________

)

KEVIN MCCREA, ET. AL, )

Plaintiffs)

)

v.)

)

CITY OF BOSTON,ET. AL.)

Defendants)

_____________________________________

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Introduction

The Defendants have moved to dismiss this matter pursuant to M.R.C.P. 12(b)(1) and 12(b)(6) claiming that the Plaintiffs have no standing to enforce an ordinance enacted by the City of Boston [CBC § 11-1.6][1] and because the ordinance was never “affirmatively approved” by the mayor, Defendants claim it was never validly enacted.

Facts

The Plaintiffs do not dispute the Defendants’ recitation of the facts as set forth in the Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss (hereinafter “Defendants’ Memorandum”) so far as they go.What the Defendants fail to admit and the only fact that the Plaintiffs claim is in dispute is alleged in ¶ 9. of Plaintiffs’ Complaint:“The City of Boston is experiencing a significant increase in crime.”[2]At this stage of the litigation, the Court must accept the Plaintiffs’ allegation of this fact as true.[3]

Argument

The Defendants claim that this Court should dismiss the Plaintiffs’ Complaint because (1) the Court lacks subject matter jurisdiction; (2) the Plaintiffs have failed to state a claim for which relief may be granted; (3) the Plaintiffs lack standing to bring their lawsuit; (4) the Plaintiffs brought their complaint too late, and (5) the City Ordinance which Plaintiffs seek to have the Court enforce is invalid.Plaintiffs argue that all of the Defendants’ arguments are all legally incorrect and amount to nothing more than a smoke screen to hide the Defendants’ contempt for Part 1, Article X of the Massachusetts Constitution: “Each individual of society has a right to be protected by it in the employment of his life, liberty and property, according to standing laws.”(emphasis added).

1.The Superior Court has subject matter jurisdiction

Plaintiffs claim that this matter is one seeking a Writ of Mandamus for which this Court has original jurisdiction under Mass. G.L. c. 249, §5.[4]While the original Complaint does not cite this particular statute, the nature of the action, i.e. compelling public officials to perform acts they are required to perform, is a classic case of Plaintiffs seeking redress by what was formerly known as the Writ of Mandamus.Indeed if one examines the case cited by the Defendants, Kaplan v. Bowker, 333 Mass. 455 (1956), but instead of reading only to page 459, simply turn to page 60 where the Supreme Judicial Court distinguishes cases where only a party injured can bring proceedings to determine the validity of a statute and goes on as follows:

This is the principle that where a public officer owes a specific duty to the public to perform some act or service not due the government as such or to administer some law for the public benefit which he is refusing or failing to perform or administer any member of the public may compel by mandamus the performance of the duty required by law.

Kaplan v. Bowker, 333 Mass. at 460.

Thereafter the Court cites Brewster v. Sherman, 195 Mass. 222 along with a long litany of other Supreme Judicial Court cases in support of this proposition.However, Brewster v. Sherman, id., is particularly relevant to the case at bar.There the dispute involved a hotly contested ballot question in the Town of Plymouth where the registrars of voters counted a contested ballot and a voter and taxpayer brought suit to challenge the decision of those registrars of voters.The Supreme Judicial Court adopted the general doctrine as stated in a treatise High, Ex. Leg. Rem. (3d ed.) § 431 as follows:

When the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws.

Brewster v. Sherman, 195 Mass. at 224.

In the present case the Plaintiffs are citizens and taxpayers of the City of Boston. There is an ordinance that they seek to have enforced.The Defendants have flatly refused to enforce the ordinance, therefore Plaintiffs have the right to secure for the public benefit the Court’s issuance of a Court Order in the nature of a Writ of Mandamus.This Court has jurisdiction.

Within Defendants’ Memorandum, the Defendants use as part of their defense of the Motion to Dismiss one Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D.In Baxter, one of the primary disputes was the validity, or lack thereof, of a city ordinance that was passed by the City Council of Boston without the support of the Mayor.It was brought in the Superior Court of Massachusetts as No. 91-2041D.The Superior Court of Massachusetts demonstrated having jurisdiction over the subject matter when it decided that the city ordinance relevant to Baxter was invalidly enacted.Similarly, the central item of this case is whether or not CBC § 11-1.6 was properly enacted into law sixteen days after it was passed by the City Council on January 31, 1979 pursuant to St. 1951, c. 376, § 17D. Since the Superior Court of Massachusetts has demonstrated jurisdiction over the subject matter of the validity of a city ordinance, Defendants’ motion to dismiss should be denied.

2. The Plaintiffs have stated a claim for which relief may be granted

The Defendants have set up a series of straw men which they then legally lambaste because the Plaintiffs do not meet the standards applicable to such straw figures.Defendants first claim that the Plaintiffs do not have standing for a Declaratory Judgment pursuant to Mass. G.L. c. 231A.Plaintiffs are not seeking a Declaratory Judgment and nowhere in Plaintiffs’ pleadings do they suggest as much. While indeed there must be an independent basis for jurisdiction in order to obtain a Declaratory Judgment, that independent basis has been set forth above in Part 1. of the Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (hereinafter “Plaintiffs’ Memorandum”).

The next straw man is the Defendants’ claim that the Plaintiffs do not meet the requirements of the Ten-Taxpayer Statute, Mass. G.L.c. 40, § 53.However, once again the Plaintiffs are not seeking relief under the Ten-Taxpayer Statute.At no point in the Plaintiffs’ pleadings is there any attempt to invoke a statute which is designed to prevent the City from raising or spending money in the “unlawful exercise or abuse of such corporate power.” G.L. c. 40, § 53.In fact this suit is quite the opposite.Plaintiffs claim that there is an ordinance which sets the minimum level of police protection which the City must maintain.Plaintiffs simply want the Defendants to do what the ordinance requires.The Plaintiffs have stated a claim.They should not be denied their legal right to seek this important public benefit. As such, Defendants’ motion to dismiss should be denied.

3. The Plaintiffs have standing to bring this lawsuit

For the reasons set forth above in paragraph 1 of the Plaintiffs’ Memorandum, the Plaintiffs are absolutely entitled to bring this lawsuit.They are all residents of the City of Boston. Nothing more is required.However, in addition to being residents, the Plaintiffs also claim that they have suffered harm due to the Defendants’ steadfast refusal to comply with the City’s Ordinance.Attached hereto are affidavits of some of the Plaintiffs which demonstrate in graphic, non-legalistic jargon what they have seen, what they have heard and what they have felt, due to the Defendants’ actions.The Court should have no doubt that these Plaintiffs have standing to petition the Defendants into a Court of Law and demand that the Defendants meet the requirements of the City’s Ordinance.If the Plaintiffs are successful in this lawsuit, an order in lieu of a Writ of Mandamus is warranted and the beneficiaries will be all citizens, including the Plaintiffs, who are residents of the City of Boston. As such, Defendants’ motion to dismiss should be denied.

4. The Plaintiffs brought their complaint too late

The Defendants assert that “the Plaintiffs brought their suit too late.” This statement demonstrates that the Defendants believe that the relationship between the City of Boston and the Police Department of the City of Boston is comparable to the relationship between the City of Boston and a general contractor doing work similar to road repair, with a definable beginning, middle and end.The Defendants use Dealty v. Selectmen of Watertown to demonstrate this point. See 279 Mass. 22,27 (1932).The first day of Fiscal Year 2007 was Thursday, July 1, 2007, but the budget for Fiscal Year 2007 was not approved by the Boston City Council until Wednesday afternoon, June 28, 2006 and signed by the Mayor on June 30, 2006. If the proposition of the Defendants is to be believed, then the window of opportunity to bring any complaint pursuant to G.L. c. 40, § 53 (or any other G.L. that requires the complaint be filed prior to any expenditure) would have been less than the 8 hours on Friday, June 30, 2006, assuming of course, that the Police Department was in operation on July 1, 2006 and therefore drawing funds from the newly passed budget.This places an impossible burden on any plaintiff for any claim against the City of Boston. As such, Defendants’ motion to dismiss should be denied.

5.The City’s Ordinance is a valid Ordinance

Notwithstanding the Defendants’ protestations to the contrary, the Plaintiffs’ assert that CBC §11-1.6 is a valid ordinance in the City of Boston.The Defendants have an obligation to comply with it, which they have repeatedly failed to do. The City of Boston garners their power for rule from the citizens and they must rule in accordance with the laws of the Commonwealth and the City of Boston.

Defendants admit that the Ordinance, what is now CBC §11-1.6 was approved by the City Council and presented to the Mayor of the City of Boston.They further admit that the Mayor neither approved or signed it; nor did the Mayor disapprove it and return it to the City Council with his objections.Under these circumstances, as required by Acts, 1951 – Chapter 376, “Every … ordinance … required by this section to be presented to the mayor which, within fifteen days after such presentation, is neither signed by him nor filed with his written objections as hereinbefore provided , shall be in force on and after the sixteenth day following such presentation.”

The Defendants contend that CBC §11-1.6 amounted to a “reorganization of the Boston Police Department” and therefore subject to Acts, 1953, c. 473, Section 1.[5]The Defendants are mistaken on this point, because CBC § 11-1.6 fails to meet any of the seven (7) conditions under which the City Council may act “with the approval of the Mayor”. Six (6) of the seven (7) conditions of Section 5of Chapter 452 of the Acts of 1948. (As amended by St. 1953, Ch. 473) are easily dismissed. They state the follows:

(a) to create a new department or agency; Plaintiffs assert that CBC § 11-1.6 does not create a new Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (a).

(b) to abolish, in whole or in part, any department or agency; Plaintiffs assert that CBC § 11-1.6 does not abolish, in whole or in part, the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (b).

(d) to confer or impose on any department or agency any power or duty of the city not appertaining at the time of the making of the bylaw or ordinance of any department or agency; Plaintiffs assert that CBC § 11-1.6 does not confer or impose on the Police Department any power or duty simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (d).

(e) to transfer any or all of the powers, duties and appropriations of any division of any department or agency to another division of the same department or agency: Plaintiffs assert that CBC § 11-1.6 does not transfer any or all of the powers, duties and appropriates of the Police Department to another division of the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (e).

(f) to transfer any or all of the powers, duties and appropriations of any department or division thereof or any agency or division thereof either to another department or division thereof or to another agency or division thereof; Plaintiffs assert that CBC § 11-1.6 does not transfer any or all of the powers, duties and appropriates of any division or agency not including the Police Department to the Police Department, nor does it transfer any or all of the powers, duties and appropriates of the Police Department away to another division or agency outside of the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (f).

(g) to increase, reduce, establish or abolish the salary of any department or department head. Plaintiffs assert that CBC § 11-1.6 does not increase, reduce, establish or abolish the salary of any department within the Police Department nor any department head within the Police Department simply by increasing and then setting a minimum staffing level, therefore it does not require the approval of the Mayor under subsection (g).

Subsection 5(c) of Chapter 452 of the Acts of 1948. (As amended by St. 1953, Ch. 473) states the only remaining condition under which the City Council must require the approval of the Mayor:

(c) to reorganize, in whole or in part, any department or department head or any agency or agency head;

The Defendants are mistaken when they state that CBC § 11-1.6 reorganizes, in whole or in part, the Police Force of the Police Department, because the Defendants assume that the word “reorganize” can be taken to mean any action which in any way, shape or form has any impact on “any department or department head or any agency or agency head”. If the word “reorganize” is taken in this extremely broad definition, it can easily be interpreted to mean that the City Council is powerless to pass any City Ordinance that will have any impact, no matter how slight or tangential, on any department or agency within the City of Boston without the approval of the Mayor.

Unfortunately, the Boston City Charter is silent on a definition for the word “reorganize” and “reorganization”, so we need to look elsewhere. The American Heritage Dictionary (Second Edition) provides two definitions of the word “reorganization”:

2.reorganization - an extensive alteration of the structure of a corporation or government

Simply by increasing and then setting a minimum staffing level, CBC § 11-1.6 does not impose a new organization, as it does not specify the manner in which the police officers will be assigned within the Police Force of the Police Department, to which Stations or Task Forces or any other department within the Police Department. Neither does it organize differently the billets or posting of the police officers. The Police Commissioner retains the power and authority of the assignment of each and every police officer within the Police Department. Further, simply by increasing and then setting a minimum staffing level, CBC § 11-1.6 does not reflect either extensive or drastic changes, nor does it represent an extensive alteration of the structure of the Police Force within the Police Department or the Police Department itself.

As stated previously, the Boston City Charter is silent on a definition for the word “reorganize”, however, the Boston City Charter does not exist in a vacuum. Its power derives from the Massachusetts General Laws, the Massachusetts General Court and the Constitution of the Commonwealth of Massachusetts. It is highly unlikely that the framers of the Constitution of the Commonwealth of Massachusetts and the Massachusetts General Laws would use an arbitrary word in this way without providing a definition or relying on the universal nature of the word which it employs throughout the Massachusetts General Laws. Within the Massachusetts General Laws, there are thirty (30) chapters which use the words “Reorganize” or “Reorganization”. A complete list of those chapters appears as attachment 2. These thirty (30) chapters fall into several sections relating to Government, Taxes, Corporations, Property and Wills. Most assume that the definition of “Reorganization” is simple enough that a definition is not provided. The word often appears in connection with financial reorganization due to bankruptcy of a corporation, where it is often used in conjunction with the creation of corporations, abolishment of corporations, mergers of corporations into a single entity, bankruptcy, changing the purpose/mission of a corporation, and conversion of corporations from one type to another. For example, a mutual banking institution that is a savings bank may reorganize so as to become a mutual holding company. See M.G.L. c. 167h, § 2.

One Chapter, M.G.L. c. 63, § 22D - Taxation of Corporations, does provide a reference to the Federal Internal Revenue Code, Section 368 which is instructive as to the scope of the “Reorganization.

M.G.L. c. 63, § 22D: For purposes of this section, a “qualifying domestic life insurance company” is a company which, after December thirty-first, nineteen hundred and fifty-eight and before December thirty-first, nineteen hundred and seventy-six, was a party to a reorganization, as defined in section 368 of the Federal Internal Revenue Code and in effect for the taxable year of the reorganization, with another domestic insurance company which was not a life insurance company, as defined by subsection (a) of section 801 of the Federal Internal Revenue Code in effect for the taxable year of the reorganization.

A complete copy text of the Federal Internal Revenue Code, Section 368 is provided as attachment 3. The following conditions would indicate that an insurance corporation in the Commonwealth of Massachusetts is a party to a reorganization; (A) a statutory merger or consolidation; (B) the acquisition by one corporation […] [of ] control of such other corporation […]; (C) the acquisition by one corporation […] of substantially all of the properties of another corporation […]; (D) a transfer by a corporation of all or a part of its assets […]; (E) a recapitalization; (F) a mere change in identity, form, or place of organization of one corporation, however effected; or (G) a transfer by a corporation of all or part of its assets to another corporation in a title 11 or similar case […].

Sections (A), (B), (C) and (D) of the Federal Internal Revenue Code, Section 368 are consistent with various portions of Section 5 of Chapter 452 of the Acts of 1948, previous discussed. Neither section (E) or (G) are relevant to this point as CBC § 11-1.6 does not address either the capitalization or the financial bankruptcy of the Police Department. Finally, CBC § 11-1.6 does not change the identity, form or place of the Police Department simply by increasing and then setting a minimum staffing level.

Finally, attachment (4) shows the organization chart of the Police Department, taken from the Fiscal Year 2007 Budget. Plaintiffs assert that, if CBC § 11-1.6 were applied as written, there is no single line or rectangle on this organization chart that would be added, remove or moved, thus dismissing any notion of “reorganization”.

Based on the Plaintiffs’ review of the Federal and Commonwealth definitions and uses of the words “reorganize” and “reorganization”, Plaintiffs assert that the use of the word means the collective actions of creating, abolishing, and merging of departments, changing the purpose and/or mission of the department or agency, changes which in the corporate world would require the filing of a new or amended Articles of Incorporation and would require a significant overhaul of the organization structure of a department or agency and its associated budgets. It is not, as the Defendants would have us believe, any action which has any impact, no matter how slight, on a department or agency. As such, Defendants’ motion to dismiss should be denied.

Plaintiffs’ assert that the ordinance does not interfere with the Police Commissioner’s authority to “appoint, establish and organize the police of [Boston]” or restrict the Police Commissioner’s “cognizance and control of the government, administration, disposition and discipline of the department….” as stated within Defendants’ Memorandum. See St. 1906, c. 291, §§ 10, 11 as amended by St. 1962, c 322, §§ 10, 11; City Council of Boston, 58 Mass. App. Ct. at 545. The ordinance simply gives the Police Commissioner a minimum amount of manpower to protect the citizens of the City of Boston.The Plaintiffs contend that there are not enough police officers for the Police Commissioner to organize and control and that the net effect of the City’s refusal to abide by CBC § 11-1.6 has nothing to do with the deployment or use of that manpower.

When the Defendants claim that CBC § 11-1.6 “interferes with the management of a city department in the same way that an ordinance interfered with the management of the corporation counsel’s office in City Council of Boston v. Mayor of Boston, 58 Mass. App. Ct. 542 (2003), the Defendants are mistaken. This is another case of apples and oranges. In that case, the City Council of Boston did not simply create an ordinance which would have increase the staff of the Corporation Council’s Office, any of which could have been made available to the City Council as needed. The City Council of Boston attempted to create a position of legal council to the City Council. The position of legal council to the City Council could be viewed as a department (and department head) unto itself (with an associated transfer of power), in violation of Section 5(a) and 5(f) of the Boston City Charter, or it could be viewed as the creation of a new division within the Corporation Council’s Office (with an associated transfer of power), in violation of Section 5(e). Either way, while we agree with the Defendants that the creation of the position of legal council to the City Council would require the “approval of the Mayor” under Section 5 of the Boston City Charter, CBC § 11-1.6 does not either create a new department or a new division and it does not transfer power. As such, it does not speak to the current case.

According to Defendants, “The Massachusetts Appeals Court has determined in City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) that these types of ordinances can only be adopted with the joint approval of the Mayor and the City Council, and thus the fifteen day approval process pursuant to St. 1951, c.376, § 17D does not apply to these. See City Council of Boston, 24 Mass. App. Ct. at 669. Although we agree with the Defendants that “these types of ordinances” comply with Section 5 of the Boston City Charter, we do not agree that CBC § 11-1.6 is one of “these types of ordinances”. Once again, this is a case of apples and oranges. The City Council of Boston had passed ordinances attempting to abolish the Inspectional Services Department in violation of Section 5(b) of the Boston City Charter, and establish a new Building Department (in violation of Section 5(a) of the Boston City Charter) as well as establishing a Commission of Women in the Mayor’s office (in violation of Section 5(a) of the Boston City Charter). CBC § 11-1.6 does not create nor does it abolish any department within the Police Department, and so City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) has no relevance in this case. City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987) does not demonstrate that CBC § 11-1.6 is one of “these types of ordinances”. Instead, it demonstrates just how dissimilar CBC § 11-1.6 is from the ordinance reviewed under City Council of Boston v. Mayor of Boston, 24 Mass. App. Ct. 663 (1987).

Additionally, the Defendants provide another example of one of “these types of ordinances” when it cites Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D. Once again, this is a case of apples and oranges. The City Council passed an ordinance giving the City Council and the Mayor control over the closure of hospitals controlled by the City Department of Health and Hospitals. If each hospital within the system controlled by the City Department of Health and Hospitals were to be viewed as either a department or a division of the City Department of Health and Hospitals, then the director of each hospital can be further viewed as department head. It becomes obvious that the ordinance reviewed under Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D violates Section 5(b) of the Boston City Charter because it had the potential to abolish a hospital, violates Section 5(e) of the Boston City Charter because it had the potential to transfer power, duties and appropriations of the abolished hospital to whichever hospital took control of the patients and potentially violates Section 5(g) of the Boston City Charter if the director of the abolished hospital were not transferred to an equal or greater role within the City of Boston. CBC § 11-1.6 does not abolish, in whole or in part, any department within the Police Department, nor does it transfer power, duties or appropriations, nor does it affect the salary of any department head within the Police Department. Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D has no relevance in this case. Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D does not demonstrate that CBC § 11-1.6 is one of “these types of ordinances”. Instead, it demonstrates just how dissimilar CBC § 11-1.6 is from the ordinance reviewed under Baxter et al. v. Bd. Of the Dep’t of Health and Hospitals of the City of Boston, SUCV 91-20410D.

In all of those cases, the Court found that there was either establishment of a new position (i.e. legal counsel to the City Council) or substantial interference with a City agency (i.e. Inspectional Services Department or Department of Health and Hospitals).In the current case there is no such interference with the internal operation of the Police Department.Plaintiffs intend to call as witnesses, experts and high ranking police officers who will testify that the Police Department is woefully undermanned and that the additional police officers will not amount to the virtual “headache” to the Police Commissioner as the Defendants contend.

The Defendants’ argument that they alone can determine the validity of CBC § 11-1.6 simply puts the shoe on the wrong foot.It is up to the City to prove that the Ordinance is invalid, not on the Plaintiffs to show that it is valid.Plaintiffs suggest that Defendants should file, as part of the current civil action, a counter-claim under G.L. c. 231 A seeking a declaratory judgment that CBC § 11-1.6 is invalid, just as the City Council did in the above-cited cases.[6]As such, Defendants’ motion to dismiss should be denied.

Conclusion

For these reasons the Defendants’ Motion to Dismiss should be denied.

Respectfully submitted,

___________________________________________

Kevin McCrea, Pro-SeDr. Clara Lora

218 West Springfield Street218 West Springfield Street

Boston, MA02118Boston, MA02118

(617) 267-2453

[1]The Plaintiffs will rely upon the Defendants’ Memorandum (page 2) for reference.

[2]As explained later in this Memorandum, this allegation, however, is neither necessary for the Plaintiffs to prove to be successful in this lawsuit, nor a condition precedent for the remedy Plaintiffs seek from this Court.

[3]The Plaintiffs herewith submit affidavits from Plaintiffs who claim to have suffered harm due to increased criminal activity and insufficient response from the City’s Police Department.

[4]Mass. G.L.c. 249, § 5 provides in part: “A civil action to obtain relief formerly available by writ of mandamus may be brought in the … superior court….”

[5]Acts, 1953, c. 473, Section 1., provides in pertinent part:“The city council with the approval of the mayor may from time to time make … ordinances for … the following purposes:… (c) to reorganize, in whole or in part, any department….”

[6]Plaintiffs make this suggestion without waiving its right to claim that the Defendants failed to make such a pleading in a timely way or that such a claim otherwise run afoul of the Massachusetts Rules of Civil Procedure.

About Me

Kevin McCrea is a businessman and "goo-goo" (good government) native son of Boston. He is an avid Red Sox fan, loves to travel and meet new people, enjoys teaching motorcycle safety classes, and learning about skills, jokes and foods from around the world